Friday, October 29, 2010

A Richardson win

Randall Hodgkinson won in State v. Gordon, No. 102,386 (Kan. App. Oct. 22, 2010), obtaining a new trial in a Sedgwick County felony fleeing and eluding prosecution. The case was largely controlled by State v. Richardson (blogged about here), which made it clear that when a crime relies on a predicate felony (like felony fleeing and eluding relies on underlying "moving violations"), the district court must instruct the jurors on the elements of the underlying offenses and specify the alleged violations. The COA rejected the state's claim that Richardson could be distinguished:

The State's arguments ignore the essential holding of Richardson: regardless of the sufficiency or specificity of the evidence presented at trial, our appellate courts will not step into the shoes of the jury and convict a defendant of five moving violations of our choice. Here, like in Richardson, Instruction No. 7 did not specify which moving violations Gordon violated.

Similarly, the COA declined the state's invitation to apply harmless error analysis to this situation.

[Update: the state did not file a PR and the mandate issued on November 29, 2010.]

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